Bradbury v. Crites

• Decision Date: 26 February 1926
• Docket Number: No. 25501.,25501.
• Citation: 281 S.W. 725
• Parties: BRADBURY v. CRITES et al.
• Court: Missouri Supreme Court

281 S.W. 725

BRADBURY v. CRITES et al.

No. 25501.

Supreme Court of Missouri, Division No. 2.

February 26, 1926.

Motion for Rehearing Denied March 2, 1926.

Appeal from Circuit Court, Jackson County; Chas. R. Pence, Judge.

Action by E. H. Bradbury against F. H. Crites and another. Judgment for plaintiff on referee's report, and defendants appeal. Affirmed.

Davis & Woodruff, of Kansas City, for appellant Crites.

R. E. Ball, of Kansas City, for appellant U. S. Fidelity & Guaranty Co.

Grant I. Rosenzweig and Charles B. McCoy, both of Kansas City, and Harry H. Howard, of Canton, for respondent.

Statement.

RAILEY, C.

This action was commenced in the circuit court of Jackson county, Mo., on May 7, 1920. Thereafter a first amended petition was filed upon which the cause was tried. It alleges, in substance, that on May 1, 1919, plaintiff, E. H. Bradbury, entered into a written contract with Kansas City, Mo., for the construction of a 15,000,000-gallon storage basin, in accordance with the terms set out in said contract, and the plans, details, and specifications in connection therewith; that plaintiff sublet the plain and reinforced concrete part of the work to defendant P. H. Crites by written contract dated May 27, 1919, for $34,000, by which Crites agreed to furnish, at his own expense, all labor and materials therefor, and to build all the plain and reinforced concrete required by the city contract; that by express terms said city contract, with plans, specifications, and drawings, was made an integral part of the Crites contract to govern him; that by the Crites contract Bradbury was to pay Crites as he received payment from the city, under the latter's contract with plaintiff. Both the Crites and city contracts are set out in said petition.

It is alleged that, prior to the execution of the Crites contract, the latter had agreed to furnish plaintiff a surety bond for the faithful performance of requirements, and, on July 14, 1919, Crites, as principal, and the United States Fidelity & Surety Company, as surety, delivered to Bradbury a bond for $20,000, on which Bradbury paid the premium; that by the terms "of said bond the surety company agreed to indemnify Bradbury from loss due to failure of Crites to perform his contract (this bond is set out in the petition); that Bradbury furnished the equipment mentioned in the Crites contract; that he paid, and offered to pay, within the proper time, all payments due Crites, and that he had complied with all the terms of the Crites contract ; that in due time Crites purchased and assembled at the site of the basin, cement, rock, sand, steel, and other necessary materials and equipment; that he employed labor and began to build, but wrongfully abandoned said work on or about August 14, 1919, since which time he has refused to proceed with said work; that Kansas City, on August 20, 1919, gave Bradbury notice to remove Crites, under article 3 of the city contract; that due notice of the above was given by Bradbury to said surety; that thereafter Bradbury took over the work, completed it in accordance with the city contract, and, in doing so, necessarily expended certain sums; that the reasonable value of the work and labor done, and the materials furnished, which, after giving proper credits, left a balance due to plaintiff of $21,786.76, as detailed in an account, attached as an exhibit to petition covering 31 pages. The petition concludes with a prayer for judgment against defendant Crites in the sum of $21,787.76 and judgment against said surety for $20,000, etc.

The amended answer and counterclaim of defendant F. H. Crites, in substance, admits that plaintiff made the contract aforesaid with Kansas City as set out in the amended petition. He admits that on or about May 29, 1919, he and plaintiff executed the contract described in petition. He admits that he procured the necessary materials and began to construct the plain and reinforced concrete work called for in said contract. He avers that he continued such construction work until on or about the 14th day of August, 1919; that he did not quit and abandon said work on said date, nor did he ever quit and abandon same voluntarily. He denies that plaintiff continued to meet the payments due this defendant under the contract aforesaid, and denies that plaintiff complied with the terms and conditions of said contract. He avers that plaintiff failed and refused, after repeated demands upon him by this defendant, to make the payments due him under said contract ; that, by reason of said refusal and failure to make such payments, this defendant was compelled to, and did, discontinue such construction work; that the notice to plaintiff and the requirements of the city mentioned in petition were occasioned by, and resulted from, the discontinuance of said construction work by defendant as he had the right to do, because of the refusal of plaintiff to make said payments and comply with his contract with this defendant. He denied all the allegations of the petition, except those specifically admitted to be true.

The second count of said answer and counterclaim refers to plaintiff's contract with the city and his contract with this defendant, dated May 27, 1919. He then cites section 7 of the city contract providing for monthly estimates by the city on the work, and proportional payments to Bradbury, based on the schedule of prices in the Bradbury proposal, less a deduction of 10 per cent., held back by the city as a protection against less than a full performance by Bradbury. It is averred that, under this provision, after a large amount of work had been done by this defendant, Kansas City, on August 2, 1919, made an estimate covering work done, including work by Crites, and paid Bradbury in accordance therewith; that Bradbury refused, after request, to pay this defendant the proportion payable for his portion of the work, within the estimate, and wrongfully offered to pay this defendant a smaller sum; that, by reason of the foregoing, this defendant discontinued the work, but notified plaintiff he would proceed with same if plaintiff would pay him in accordance with their contract; that plaintiff refused to pay as aforesaid, and refused to let Crites continue the work; that plaintiff took over the work, materials, and supplies furnished by Crites on the job, including his tools and equipment. He claimed damages in the sum of $6,856.05, as shown in a statement attached to said answer.

The United States Fidelity & Guaranty Company filed an amended answer, denying the allegations of the petition, and adopted the amended answer of defendant Crites.

Plaintiff, in his reply to the amended answer of the guaranty company, denied all the allegations contained therein. He further alleged that, without his knowledge and consent, defendant Crites wrongfully discontinued work under his contract with plaintiff on August 14, 1919, and at all times since said date has refused to complete the same, unless plaintiff, in addition to payment of the full price of $34,000 called for in said contract, would also agree to pay Crites a further sum of $7,815.04, representing the cost of steel which had been purchased by defendant Crites, on his own behalf, under his contract with plaintiff, as part of the materials necessary in the construction of said reinforced concrete work, etc. Plaintiff filed a similar separate reply to the amended answer of defendant Crites.

On March 25, 1921, on motion of plaintiff, this cause was, by order of the assignment division of the Jackson county circuit court, at Kansas City, Mo., referred to Mr. Milton Schwind, as referee, under the provisions of chapter 12, art. XIV, Revised Statutes of Missouri 1919.

On February 25, 1922, the above referee, after having heard the testimony, etc., in this cause, filed in the circuit court his report, which is set out upon pages 36 and following of the abstract.

It appears from the record that, among other documents offered in evidence by plaintiff, Were three contracts. The first was prepared by defendant Crites, and is dated May 27, 1919, but was not signed by either plaintiff or Crites. It was delivered by the latter to plaintiff, and refers to the proposed contract between said parties. The second was the contract and specifications between plaintiff and Kansas City covering the work in question. The third was the contract between plaintiff and defendant Crites relating to said work.

The foregoing contracts were offered in evidence by plaintiff, and testimony running through a record of 850 pages was taken by the referee, relating to the issues between the parties hereto. The referee made his report to the circuit court, and, as it clearly sets out the issues between the parties, with his findings in respect to same, we here set out a part of said report, as a statement of the case, to wit:

"Statement.

"The issues which are required to be determined will be stated in connection with the following narrative of the facts: Bradbury obtained a contract from the city to build a large storage basin in the northeast part of the city. The work entailed the removal of a large quantity of earth, as well as the construction of extensive concrete foundations and walls. The city's contract with Bradbury incorporated details, plans, and specifications amply exhibiting the requirements of the completed structure. Bradbury intended personally to do all the work of excavation, but entered into negotiations with Crites to do the concrete portion of the construction. The contract dated May 27th, and signed July 14th, is the written evidence of their agreement. Long prior to the actual signing of the contract Crites appears to have been actively engaged in construction work. Under clause 7 of the city contract an estimate was made by the city, dated July 9, 1919. It covered the work from commencement to and including June 30th, and covered the work done both by Crites and...